P.Nazeer Etc. vs Salafi Trust

CIVIL APPEAL NOs.3132­3133 OF 2016

P. NAZEER ETC. …APPELLANT(S)

VERSUS

SALAFI TRUST & ANR. ETC. …RESPONDENT(S)

JUDGMENT

V.RAMASUBRAMANIAN, J.

1. Aggrieved by a common Judgment delivered by the High Court of

Kerala in two Civil Revision Petitions filed under the proviso to sub­

section (9) of Section 83 of the Waqf Act, 1995, reversing the judgment

of the Waqf Tribunal and decreeing the suit of the respondents in

entirety, but dismissing their own suit, the appellants have come up Signature Not Verified

with the above civil appeals.

Digitally signed by Jayant Kumar Arora Date: 2022.03.30 17:12:36 IST Reason: 1

2. We have heard Shri R. Basant, learned senior counsel appearing

for the appellants and Shri V. Giri, learned senior counsel appearing

for the private contesting respondents.

3. The sole appellant in one of the above appeals by name

Shri P. Nazeer was the defendant in a suit O.S No.10 of 2004 filed by

the respondents 1 and 2 herein, on the file of Waqf Tribunal, Kollam.

The three appellants in the other civil appeal were the plaintiffs in O.S

No.9 of 2004 filed on the file of very same Waqf Tribunal, Kollam.

Since the appeals on hand arose out of cross­suits between the same

parties and also since the subject matter of the dispute relates to the

right to management and administration of a mosque and its

properties, it will be easy to appreciate the facts, if presented in a

tabular column:

Suit No. Names of of Names of ofReliefs Reliefs Plaintiffs defendants sought granted by Waqf Tribunal OS No.9 1.Salafi Juma 1. Salafi Trust i) pass a 1. The relief of of 2004 Masjid Mahal 2. H.E. Ahmed decree declaration was Committee Thahir Sait, declaring that rejected. 2. K.M. Syed, Vice President the document President 3. A.K. Babu, 2. The relief of 3. P. Nazeer, Secretary No.2 issued by permanent Secretary 4. O.M. Khan, the 6th injunction Salabhavan Defendant is granted

2 5. S. Rasheed, null and void. restraining Cashier defendants 1 to 4 6. The CEO, ii) Issue a from interfering Kerala Waqf decree of with the Board, permanent management and 7. Kerala administration of prohibitory Waqf Board the plaint injunction schedule waqf restraining the and its Defendants institutions. No.1 to 4 their men, agents and supporters from interfering into or obstructing the management and administration of plaint schedule mosque and its institutions by the Plaintiff Committee.

OS No.10 1. Salafi P. Nazeer (i) Declaring 1. Declaration of 2004 Trust that the 2nd that the second 2. A.K. Babu Plaintiff is the plaintiff A.K. Secretary of the Babu is the 1st Defendant secretary of Salafi Trust is granted. Trust. 2. But the relief (ii) Restraining of permanent the Defendant injunction is or anybody rejected. under him by permanent injunction from interfering with

3 administration & management of the 1st Plaintiff Trust and scheduled property by the 2nd Plaintiff as the Secretary of the 1st Plaintiff.

4. It is necessary to bring on record, before proceeding further, that

document No.2 in respect of which the appellants herein sought a

declaration of nullity, in their own suit O.S No.9 of 2004, was a

certificate issued by the Chief Executive Officer of Kerala Waqf Board

dated 24.03.2004 in favour of Salafi Trust. The said certificate reads

as follows:

“This is to certify that the Salafi Trust, Mattanchery, Cochin­ 2 in Kochi Taluk, Ernakulam District, Kerala State and its properties having 17 cents comprised in Survey No.527/4 within the limit of Ambalappuzha Taluk Alappuzha District have been registered before the Kerala Waqf board as required under Section 36 of the Waqf Act, 1995 being its registration No.6406/RA. As per records of this office, Shri A.K. Babu is the present secretary of the above Trust.”

5. In other words the appellants in the second civil appeal before

us, namely, (i) Salafi Juma Masjid Mahal Committee; (ii) its President

4 K.M. Syed; and (iii) its Secretary P. Nazeer, sought two sets of reliefs

from the Waqf Tribunal. They were (i) to declare the certificate dated

24.03.2004 issued by the Chief Executive Officer of the Kerala Waqf

Board in favour of Salafi Trust as null and void; and (ii) for a

permanent injunction restraining the defendants from interfering with

their management and administration of the mosque and its

properties. Though the Tribunal granted the relief of injunction, the

Tribunal refused the relief of declaration. However, these three

appellants did not choose to challenge the Judgment of the Waqf

Tribunal rejecting the relief of declaration.

6. Similarly the respondents 1 and 2 herein sought two sets of

reliefs from the Tribunal, namely, (i) for a declaration that the second

respondent A.K. Babu is the Secretary of the first respondent­Trust

namely Salafi Trust; and (ii) for a permanent injunction restraining

Shri P.Nazeer, the Secretary of the Mahal Committee from interfering

with their right of management of the mosque. Though the Tribunal

granted the relief of declaration, it did not grant the relief of

injunction.

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7. Therefore, (i) Salafi Trust; and (ii) its Secretary A.K. Babu filed

two civil revision petitions before the High Court of Kerala under the

proviso to Sub­section (9) of Section 83 of the Waqf Act, 1995. The

High Court allowed both the civil revision petitions, dismissing O.S

No.9 of 2004 in entirety and decreeing O.S No.10 of 2004, as prayed

for. Therefore, the group which we may conveniently refer to as ‘Mahal

Committee’ has come up with the above civil appeals.

8. The case of the appellants before the Waqf Tribunal was: (i) that

Salafi Juma Masjid is a public waqf registered with the Kerala Waqf

Board; (ii) that though the mosque was constructed in a vacant plot

given by Salafi Trust, the management and the administration of the

waqf was with the Mahal Committee; (iii) that as per the law relating

to waqfs, the person who manages the waqf is the Mutawalli; (iv) that

upon a complaint lodged by the appellant Shri P. Nazeer on behalf of

the Mahal Committee, an enquiry was held by the Waqf Board; (v) that

though the Enquiry Officer recorded a finding that the management

and administration of Salafi Masjid was with the Mahal Committee of

which P. Nazeer was the Secretary, the Chief Executive Officer of the

6 Waqf Board wrongfully issued the certificate dated 24.03.2004; and

(vi) that, therefore, the said certificate should be declared as null and

void and a permanent injunction should be issued restraining Salafi

Trust and its men from interfering with the management and

administration of the mosque.

9. Interestingly, the Waqf Tribunal refused to declare the Certificate

dated 24.03.2004 as void, on the ground that undisputedly, Salafi

Trust got the waqf registered under Section 36 of the Waqf Act and

that admittedly Mr. A.K. Babu was the Secretary of the Trust. But the

relief of injunction was granted by the Waqf Tribunal on the ground

that the management and administration of the mosque and its

properties was with the Mahal Committee.

10. In the revision, the High Court found (i) that Mahal Committee is

not a registered entity and hence not entitled to file a suit; (ii) that the

suit was not even filed in a representative capacity after following the

procedure prescribed under Order 1 Rule 8 CPC; (iii) that though the

challenge was to the management and administration of a mosque and

its immovable properties, there was no schedule of property attached

7 to the plaint in O.S No.9 of 2004; and (iv) that as per the evidence on

record, it was the Salafi Trust which was in management and

administration of the mosque and its properties. On the basis of these

findings, the High Court decreed the suit filed by the respondents in

entirety and dismissed the suit filed by the appellants in full.

11. Assailing the order of the High Court, Shri R. Basant, learned

senior counsel contended that the High Court exceeded its revisional

jurisdiction and decided the lis as though it was a regular appeal.

Relying upon the Constitution Bench decision of this Court in

Hindustan Petroleum Corporation Limited vs. Dilbahar Singh,1

the learned senior counsel contended that wherever the statute

employed the expressions “appeal” and “revision”, the expression

“revision” is meant to convey the idea of a much narrower jurisdiction.

Sub­section (9) of Section 83 of the Waqf Act declares that no appeal

shall lie against any decision given by the Waqf Tribunal. Therefore,

the learned senior counsel contended that the proviso to Sub­section

(9) which confers a revisional jurisdiction upon the High Court, is

meant to confer a jurisdiction narrower than the jurisdiction of an

1 (2014) 9 SCC 78

8 appellate Court. In the case on hand, according to the learned senior

counsel for the appellants , the High Court appreciated the evidence

independently and recorded findings on questions which were not

even framed as issues by the Tribunal and that, therefore, the

impugned order of the High Court is completely contrary to law.

12. While we agree with the learned senior counsel for the appellants

that the revisional jurisdiction conferred by the proviso to Sub­section

(9) of Section 83 is narrower than the jurisdiction that could have

been conferred upon an appellate court, we do not think that the

impugned order of the High Court suffers from the vice sought to be

attributed by the learned senior counsel for the appellants.

13. Admittedly, the Mahal Committee which is appellant No.1 in one

of the two appeals on hand, was plaintiff No.1 in O.S No.9 of 2004. In

the plaint in O.S No.9 of 2004, there was not even a whisper about the

corporate status of the Mahal Committee. In the written statement

filed by Salafi Trust, they raised a specific contention that plaintiff

No.1 was not a legal entity and that it is an illegal association of

certain individuals and that there was not even a pleading as to

9 whether there were any bye­laws and as to how plaintiffs No.2 and 3

became the President and Secretary respectively.

14. Unfortunately, the Waqf Tribunal, in paragraph 17 of its

Judgment held that plaintiff No.1 is a legal entity, entitled to sue and

be sued. This was solely on the ground that plaintiff No.1 (Mahal

Committee) was one of the Sakha units affiliated to a registered society

by name Kerala Naduvathil Mujahideen (‘KNM’ for short).

15. The aforesaid finding is completely contrary to law. A society

registered under the Societies Registration Act is entitled to sue and

be sued, only in terms of its bye­laws. The bye­laws may authorise the

President or Secretary or any other office bearer to institute or defend

a suit for and on behalf of the society. Under section 6 of the Societies

Registration Act, 1860, “every society registered under the Act may sue

or be sued in the name of President, Chairman, or Principal Secretary,

or trustees, as shall be determined by the rules and regulations of the

society and, in default of such determination, in the name of such

person as shall be appointed by the governing body for the occasion”.

Even the Travancore­Cochin Literary, Scientific and Charitable

10 Societies Registration Act, 1955, which is applicable to parts of Kerala

carries a similar provision in section 9. Therefore, unless the plaintiff

in a suit which claims to be a society, demonstrates that it is a

registered entity and that the person who signed and verified the

pleadings was authorised by the bye­laws to do so, the suit cannot be

entertained. The fact that the plaintiff in a suit happens to be a local

unit or a Sakha unit of a registered society is of no consequence,

unless the bye­laws support the institution of such a suit.

16. The Waqf Tribunal committed a gross illegality, first in not

framing an issue about the status of the Mahal Committee and then in

recording a finding as though the local unit of a registered society

which is in enjoyment of affiliated status, was entitled to sue. Such an

illegality committed by the Tribunal was liable to be corrected by the

High Court under its revisional jurisdiction and hence the fulcrum of

the argument of the learned senior counsel for the appellants, has to

fall to the ground.

17. As a matter of fact, the Mahal Committee did not file any revision

against the rejection by the Waqf Tribunal of the relief of declaration

regarding the certificate dated 24.03.2004 issued by the Chief

11 Executive Officer of the Kerala State Waqf Board. In the plaint filed by

the Mahal Committee in OS No.9 of 2004, they assailed the certificate,

on the ground that the said certificate completely repudiated the

findings of the Enquiry Officer that the Mahal Committee was in

management and administration of the Masjid. In other words the

appellants herein understood, and rightly so, that the certificate dated

24.03.2004 sought to dislodge their claim to be in management and

administration of the mosque. Therefore, the rejection by the Waqf

Tribunal, of the prayer for declaring the said certificate to be null and

void was fatal to their claim. Yet the appellants did not choose to file a

revision. Today they cannot take umbrage under the fact that in any

case, the Tribunal found them to be in management and

administration of the waqf.

18. Though the High Court did not put against the appellants, their

failure to file a revision, we think it is a crucial fact which cannot be

overlooked. This is for the reason that the document dated 24.03.2004

is a certificate of registration issued under Section 36 of the Waqf Act,

1995. Once it is admitted that it was the first respondent namely the

Salafi Trust who got the mosque registered as a waqf under Section 36 12 of the Act and once it is admitted by the appellants in paragraph 2 of

their plaint in OS No.9 of 2004 that the mosque was constructed in a

vacant plot demised by Salafi Trust, it was not open to them to go

against the statutory prescriptions and claim to be the Mutawalli.

19. Though Shri R. Basant, learned senior counsel for the appellants

also invited our attention to certain other aspects in the impugned

judgment, we do not think that we need to go into each of these issues

when we are convinced that the High Court exercised its revisional

jurisdiction correctly and justly.

20. Therefore the appeals are dismissed. There shall be no order to

costs.

…………………………….J. (Hemant Gupta)

…………………………….J. (V. Ramasubramanian) New Delhi March 30, 2022.

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